Federal judge dismisses lawsuit by Texas group over NBAF lawsuit

Washington  A federal judge has dismissed a lawsuit filed by a Texas consortium protesting the Homeland Security Department’s choice of Kansas for a multimillion-dollar biodefense lab.

The judge decided the lawsuit was premature and dismissed it without prejudice, opening the way for the Texas Bio- and Agro-Defense Consortium to refile the lawsuit later, which the group said it may do.

Details of the judge’s decision were temporarily sealed. Federal Court Claims Judge Mary Ellen Coster Williams said in a hearing this month the lawsuit seemed premature. She said the lab may never materialize and noted that a deal had not been made for Kansas to provide land in Manhattan, Kan. for the lab. The Kansas Board of Regents has agreed to provide the land but the Homeland Security Department has not signed that agreement.

“Instead of saying ‘no,’ the court simply said ‘not yet,”’ Michael Guiffre, the Texas consortium’s attorney, said Friday. “We’ll be right back where we started as soon as DHS figures out what it is doing.”

The Texas group had alleged that the department ignored the high risk of tornadoes in the region and the site selection process was tainted by politics.

Texas was one of six potential sites for the lab. The Kansas site was recommended unanimously by a panel of staffers from the Homeland Security and Agriculture Department and was picked in a transparent process, said spokeswoman Amy Kudwa. She declined comment on the judge’s decision because of the possibility of another lawsuit.

The lab is intended to replace an aging lab at Plum Island, N.Y., where foot-and-mouth disease research has been done since 1955. By law it has been confined to the island to avoid an accidental outbreak that could lead to the slaughter of millions of livestock. Other deadly diseases also will be researched at the planned lab.

The Homeland Security Department hopes to award a contract estimated to be at least $525 million by September and break ground on the lab next summer.

Congress may slow that schedule by withholding money or at least requiring the Homeland Security Department to first study the risk of moving foot-and-mouth research to the heart of the country before it can start bidding a construction contract.

To argue for dismissal of the Texas suit, a Justice Department lawyer had to persuade the judge that construction of the lab at the Kansas site was not yet set in stone.

Jim Dublin, a spokesman for the Texas consortium, said the department “is leading us down the rabbit hole by claiming it does not know how, when and if it will build the bio-agro research facility in Kansas” even though it has said it chose Kansas.

“Everybody involved in this site selection for two years knew they had to have the land conveyance nailed down tight as a drum,” Dublin said.

Tom Thornton, president of the Kansas Bioscience Authority, said the lawsuit’s dismissal keeps the development of the lab on track.

The federal government’s defense of its Kansas choice “demonstrates Homeland Security’s continued recognition that Kansas is the right home for the NBAF because it is uniquely positioned to meet the national challenge of protecting the American food supply and agriculture economy,” Thornton said.

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Comments

Texas is correct. Kansas would never think to build a weather proof bio defense building. And Texas never has bad weather. My question is how does the judge know the laboratory building may never materialize?